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OSHA Commentary on its position on Post-Incident Drug Testing in its Tracking of Workplace Injuries and Illnesses Final Rule

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In OSHA’s Tracking of Workplace Injuries and Illnesses Final Rule published in the Federal Register Vol. 84, No. 17 on January 25, 2019 OSHA commented on the post-incident drug testing in the Rule’s Section I, Background Information as follows at page 383 second column,  noting

“While not the focus of this particular rulemaking, that memorandum accurately reflects OSHA’s position and addresses the commenters’ concerns.” https://www.govinfo.gov/content/pkg/FR-2019-01-25/pdf/2019-00101.pdf

From the Rule’s Section I Background Information:

In response to concerns about the application of the 2016 final rule to employee drug testing and incident based incentive programs, OSHA notes that the employee protection provisions promulgated by that final rule and codified at 29 CFR 1904.35 neither ban drug testing employees involved in workplace injury or illnesses, nor prohibit incident-based incentive programs. Rather, § 1904.35(b)(1)(iv) merely prohibits employers from implementing these programs to penalize workers ‘‘for reporting a work related injury or illness.’’ Id. (emphasis added). On October 11, 2018, OSHA issued a memorandum that explained this regulatory text and OSHA’s position on workplace incentive programs and post-incident drug testing. See U.S. Dep’t of Labor, Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 CFR§ 1904.35(b)(1)(iv) (Oct. 11, 2018). That memorandum—which referred to the2016 final rule and its preamble—reiterated the rule’s limited scope and expressed how it ‘‘does not prohibit workplace safety incentive programs or post-incident drug testing.’’ Id. To the extent the 2016 preamble suggested otherwise, it has been superseded. While not the focus of this particular rulemaking, that memorandum accurately reflects OSHA’s position and addresses the commenters’ concerns.

https://www.govinfo.gov/content/pkg/FR-2019-01-25/pdf/2019-00101.pdf page 383.

 

The Department of Labor’s referenced Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 CFR§ 1904.35(b)(1)(iv) (Oct. 11, 2018) can be reviewed at:  https://www.osha.gov/laws-regs/standardinterpretations/2018-10-11